Central Oregon Landwatch v. Deschutes County

In order for a Goal 11 exception to be granted, which allows an otherwise prohibited sewer system, OAR 660-011-0660(9)(a) requires that there be more than an abstract public health concern identified to justify the exception.

Petitioner appealed a county ordinance adopting a reasons exception to Statewide Planning Goal 11 in order to allow an otherwise prohibited sewer system. In 2015, DEQ, DLCD, and the county applied for a comprehensive plan amendment to take an exception to Goal 11. After multiple public hearings, the board of county commissioners approved the Goal 11 exception in Ordinance 2016-007, allowing the establishment of the new sewer systems and the extension of existing sewer systems, on various lands.

OAR 660-011-0060(9) permits extension of a sewer system outside the UGB when the local government approves a “reasons” exception to Goal 11. The exception that the county utilized was based on a necessary “public health issue,” arising from nitrate contamination of the ground water.

Petitioner argued that the conclusion that sewers are not necessary to avoid an imminent and significant public health hazard does not provide a basis to justify the exception. Using administrative history and analyzing context, LUBA determined the meaning and intent of the phrase “appropriate reasons and facts for an exception to Goal 11,” and concluded that OAR 660-011-0060(9)(a) and (b) were not intended to describe exhaustive situations that could justify a reasons exception. LUBA further determined that the context surrounding OAR 660-011-0060(9)(a) suggests that there must be more than an abstract public health concern to warrant a Goal 11 exception. LUBA agreed with petitioner, concluding that the county must identify a specific concern to qualify for the Goal 11 exception on remand.

Petitioner further asserted that the county’s decision does not qualify as an exception within the meaning of the term set out in ORS 197.732(1)(b)(A) due to lack of evidence. LUBA agreed that the record was inadequate in several respects, and did not include adequate findings explaining why OAR 660-004-0020(2)(a) was met. REMANDED.